Houston Air Ordinance Upheld by Texas Appeals Court

The Texas First Court of Appeals issued an opinion on August 29, 2013 holding that two Houston city air quality ordinances were not preempted by the Texas Clean Air Act ("TCAA"). City of Houston v. BCCA Appeal Group, Inc. (No. 01-11-00332-CV). The ordinances established a City air quality program that included a fee schedule and expanded the program’s scope to cover emission sources subject to TCEQ regulation. Reversing the trial court, the Court of Appeals found that the TCAA did not preempt Houston’s authority and that the ordinance registration and fee provisions were legal because they operated a concurrently with existing state requirements. The Court also held that because the ordinances only incorporated parts of the TCAA, and did not include TCEQ discretionary enforcement powers, they did not circumvent the express goals of the Legislature to render them invalid.  The court’s opinion is available here.